특정범죄가중처벌등에관한법률위반(절도)등
The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.
The grounds of appeal are examined.
The lower court upheld the first instance judgment that convicted the Defendant by applying Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) and Articles 330 and 342 of the Criminal Act as to the facts charged in the instant case.
Of Article 5-4(1) of the Specific Crimes Aggravated Punishment Act, the part on Articles 330 and 342 of the Criminal Act (hereinafter “instant provision”) provides that a person who habitually commits a crime under Articles 330 and 342 of the Criminal Act shall be punished more severe than that under Articles 332, 330, and 342 of the Criminal Act (hereinafter “instant provision”).
However, the legal provisions of this case, in addition to the elements of the instant penal provision, are not entirely added to the elements of a specific aggravated punishment, and only a statutory punishment is aggravated, thereby causing confusion in the application of the law to the prosecutor’s discretion. Moreover, unlike the punishment prescribed in the instant penal provision, the statutory punishment, unlike the punishment prescribed in the instant penal provision, is adding life imprisonment to a multiple-choice type type, and the minimum sentence of imprisonment is set at three years, thereby failing to fully satisfy the legitimacy and balance in the penal system. Accordingly, whether any provision is applied at the discretion of prosecution, causing serious imbalance of punishment and thus contravenes the basic principles of the Constitution or the principle of equality.
Therefore, in this case, prosecuted by applying the legal provisions of this case to the facts charged of committing the crime falling under the provisions of the Criminal Act, the court below should have deliberated and judged on the unconstitutionality of the provisions of this case or the necessity of modification of indictment procedures, etc. to avoid the unconstitutionality of the provisions of this case, but without examining it, found the defendant guilty as the facts charged of violating the provisions of this case.